NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

CORNELL WILSON, JR., Appellant.

No. 1 CA-CR 15-0626

Appeal from the Superior Court in Maricopa County

No. CR2014-108204-001

The Honorable Charles Donofrio III, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Eric Knobloch

Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix

By Cynthia D. Beck

Counsel for Appellant
STATE v. WILSON

Decision of the Court

2

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding 

Judge Peter B. Swann and Judge Jon W. Thompson joined.

K E S S L E R, Judge:

¶1 Cornell Wilson, Jr. was tried and convicted for four counts of 

aggravated driving or actual physical control of a motor vehicle while 

under the influence of intoxicating liquor or drugs, non-dangerous, class 4 

felonies with four prior felony convictions. On appeal, Wilson argues that 

the superior court abused its discretion when it denied Wilson’s motion to 

dismiss or suppress blood evidence and the prosecutor’s misconduct 

during trial deprived Wilson of due process. For the reasons that follow, 

we affirm Wilson’s convictions and sentences.

FACTUAL AND PROCEDURAL HISTORY

¶2 Department of Public Safety Trooper L, on duty around the I17 and milepost 227, observed a vehicle being driven erratically and after 

following it for several miles, activated his emergency lights and siren. The 

vehicle responded slowly, went past an exit, and abruptly stopped in the 

middle of the road, so Trooper L told the driver to pull over onto the nearby 

frontage road. Trooper T arrived at the scene soon after Trooper L made 

contact with the vehicle and observed the subsequent events. 

¶3 Trooper L walked up to the car, noticed the windows were 

tinted extremely dark, and knocked on the back window. The driver 

opened the front door and Trooper L smelled a strong odor of alcohol 

coming from inside the vehicle. He identified Wilson as the driver and 

noticed Wilson was disoriented and fumbled with his keys; moments later 

Wilson locked his keys in the vehicle. 

¶4 Trooper L noticed Wilson’s slurred speech and bloodshot, 

red, and watery eyes—both signs of impairment. He told Wilson the reason 

he pulled him over, and smelled alcohol on Wilson’s breath. Wilson told 

Trooper L that he was going to Phoenix; however, he was traveling 

northbound toward Flagstaff. Then, Wilson told Trooper L: “We both 

know I shouldn’t be driving. My license is suspended. Just take me to jail.”

Trooper L asked Wilson for his driver’s license, and Wilson handed him an 
STATE v. WILSON

Decision of the Court

3

Arizona Identification Card. Wilson knew his license was suspended. 

Trooper L also asked Wilson if he consumed any alcoholic beverages and 

Wilson replied that he had consumed four to five beers thirty minutes prior. 

¶5 Trooper L then administered standardized field sobriety tests. 

First he administered the Horizontal Gaze Nystagmus, and received all six 

clues of nystagmus on Wilson. Wilson refused to do the other two 

standardized field sobriety tests and exclaimed: “Just, look, just arrest me, 

man. We both know I’m drunk.” Trooper L then arrested Wilson and 

transported him to the Sheriff’s Office at Anthem. 

¶6 At the Sheriff’s Office, Trooper L told Wilson that Arizona law 

required him to submit to a breath or blood test, but he refused. Trooper L. 

then obtained a warrant and Trooper T, a phlebotomist, drew Wilson’s

blood. Trooper T attempted to draw two vials of blood; one vial for testing 

and one to provide to the defendant for his own testing. Trooper T was able 

to draw one full vial of blood and only a flash of blood in the second vial.

Trooper T understood that under DPS guidelines, he should not draw any 

more blood after two unsuccessful attempts. He sealed the blood that he 

was able to draw in a blood kit box. Trooper L then read Wilson his 

Miranda1 rights. The blood testing showed that Wilson had a BAC of 0.150.2

Using retrograde analysis, the evidence showed that within two hours of 

driving, Wilson’s BAC was most likely in the range of 0.172 to 0.217. 

¶7 The jury returned a guilty verdict on all four counts. At 

sentencing, the superior court found that the State’s allegations of four prior 

felony convictions were proven. The court sentenced Wilson to 

presumptive, concurrent sentences of ten years of imprisonment for each 

count, with seventy-six days of presentence incarceration credit.

¶8 Wilson timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, and Arizona Revised 

Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and -

4033(A)(1) (2010).

DISCUSSION

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).

2 The person testing the samples determined that it would take 

approximately six standard drinks for someone of Wilson’s height and 

weight to reach that blood alcohol concentration. 
STATE v. WILSON

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I. Motion to Suppress Blood Evidence

¶9 Wilson argues that the superior court abused its discretion 

when it denied Wilson’s motion to suppress the blood evidence. He argues 

that Trooper T’s affirmative conduct prevented the preservation of an 

untested sample, therefore Trooper T should have been required to advise 

Wilson that he had a right to an independent test. Because he was not told

about that right, he argues the court should have granted his motion to 

dismiss for the violation of his due process right to obtain exculpatory 

evidence, and that the resulting convictions and sentences should be 

reversed. 

A. Relevant Facts

¶10 Before trial, Wilson moved to dismiss or suppress all blood 

evidence pursuant to Arizona Rules of Criminal Procedure (“Rule”) 16.2 

based on an alleged violation of his right to gather independent evidence of 

sobriety. The State responded that more than enough blood remained in 

the vial for Wilson to obtain an independent test and that Arizona law does 

not require police to inform DUI suspects of their right to independent 

testing. 

¶11 At the evidentiary hearing, the State stipulated that no one 

advised Wilson of his right to have an independent test. Trooper T testified 

that on his first attempt to draw blood from Wilson, he did not get inside 

the vein. On his second try, he drew one full vial but Wilson was pulling 

his arm away, and when he inserted the second vial, there was a flash of 

blood and the blood stopped. Trooper T believed Wilson was playing 

games to keep him from drawing blood. At that point, he elected to stop 

the draw. He did not call another phlebotomist to draw more blood 

because it would have taken another hour or more for someone to show up. 

¶12 KZ, who conducted the lab tests, testified that contamination 

in the single vial of Wilson’s blood was highly unlikely due to her methods. 

She said that every time she retested a sample, she received consistent 

results. KZ used between one to two milliliters of blood for the test and left 

at least seven milliliters remaining. She testified that the remaining blood 

was enough for a defendant to retest the blood. She would be comfortable 

retesting Wilson’s blood from the remaining blood in the one vial. MG, a 

defense forensic toxicologist, testified that to get a true independent 

analysis, a sample should be collected contemporaneously with the first 

sample that has been sealed, unopened, and unused by another laboratory. 

KZ testified again that she only handled one blood sample at a time, never 
STATE v. WILSON

Decision of the Court

5

mixed any control solutions into Wilson’s blood that may have contained 

ethanol, and never poured anything at all into his blood. 

¶13 The superior court denied Wilson’s motion to dismiss or 

suppress the blood evidence. It held that neither statutes nor case law 

supported the defense’s position that a defendant has a right to have a 

second vial of blood unopened by the criminalist to test in order to have an 

independent blood test. It also held the testimony did not support the claim 

that Wilson was denied an independent blood draw. 

B. Standard of Review

¶14 We will not disturb a superior court’s ruling on a motion to 

suppress absent a clear abuse of discretion. State v. Carter, 145 Ariz. 101, 

110 (1985). We only consider the evidence presented at the evidentiary 

hearing and view that evidence in the light most favorable to upholding the 

superior court’s ruling. State v. Estrada, 209 Ariz. 287, 288, ¶ 2 (App. 2004). 

“We defer to the trial court’s factual findings that are supported by the 

record and are not clearly erroneous.” Id. (quoting State v. Rosengren, 199 

Ariz. 112, 116, ¶ 9 (App. 2000)). The trial court determines the credibility of 

the witnesses, but we review de novo the trial court’s legal conclusions and 

issues of statutory interpretation. Estrada, 209 Ariz. 287 at 288, ¶ 2. 

C. Analysis

¶15 Wilson argues the police officers interfered with his due 

process right to obtain an independent sample of his blood because they 

should have told him of his right to an independent test given that there 

was not a second vial of blood for him to test. We disagree. 

¶16 A DUI suspect has a “due process right to gather exculpatory 

evidence.” State v. Olcan, 204 Ariz. 181, 183, ¶ 8 (App. 2003). As codified in 

the relevant statute A.R.S. § 28-1388(C) (1999):

The person tested shall be given a reasonable opportunity to 

arrange for any physician, registered nurse or other qualified 

person of the person’s own choosing to administer a test or 

tests in addition to any administered at the direction of a law 

enforcement officer. The failure or inability to obtain an 

additional test by a person does not preclude the admission 

of evidence relating to the test or tests taken at the direction 

of a law enforcement officer. 
STATE v. WILSON

Decision of the Court

6

However, “[w]e have consistently held that police are not obliged to inform 

DUI suspects of their right to independent testing.” State v. Superior Court

In and For Cnty. of Yavapai (Norris), 179 Ariz. 343, 345 (App. 1994). See also

Van Herreweghe v. Burke, 201 Ariz. 387, 390, ¶ 10 (App. 2001) (“Petitioner’s 

lack of knowledge is not a barrier erected by the State in the defendant’s 

path to independent testing.”); State v. Ramos, 155 Ariz. 153, 156 (App. 1987) 

(“Failure of the officer to inform the [DUI] suspect of his right to an 

independent test does not constitute interference with the ability to get an 

independent test.”). Further, “[p]olice officers are not required to take the 

initiative or even assist in procuring any evidence on behalf” of a DUI 

suspect. Smith v. Cada, 114 Ariz. 510, 512 (App. 1977). 

¶17 The only Arizona case that found a duty to inform a DUI 

suspect of his or her right to an independent test is Montano v. Superior

Court, 149 Ariz. 385 (1986). However, Montano involved a unique set of 

circumstances “where the arresting officers did not have access to a 

breathalyzer and did not invoke implied consent.” Norris, 179 Ariz. at 345. 

This situation resulted in a narrow exception to the general rule and is 

limited to its factual situation. Id. As we explained in Ramos, 155 Ariz. at

155, “absent the unique conditions in Montano no Arizona court has ever 

held that a DWI suspect must be told of his right to get an independent 

test.” “Had the legislature intended to create such a requirement, we are 

confident that it could and would have done so.” Norris, 179 Ariz. at 347. 

¶18 We find no exception to this rule simply because the State was 

not able to draw a second vial of blood for use by Wilson. Montano is 

limited to the situation where the State takes no blood or breath samples, 

thus requiring the State to inform the defendant of his right to have a test 

done to refute the State’s subjective evidence of inebriation. Here, a usable 

amount of blood sample was taken and used as evidence. Wilson’s ability 

to test that sample does not affect whether the police have to tell him of his 

right to an independent draw and test. Further, Wilson’s failure to obtain 

an additional test “does not preclude the admission of evidence relating to 

the test or tests taken at the direction of a law enforcement officer.” A.R.S. 

§ 28-1388(C).

¶19 Wilson argues Trooper T’s affirmative conduct prevented the 

preservation of an untested sample, implying that Trooper T interfered 

with Wilson’s right to obtain an independent sample. The State may not 

unreasonably interfere with a defendant’s efforts to obtain an independent 

sample. Olcan, 204 Ariz. at 184, ¶ 12. Unreasonable interference occurs 

when police deny a suspect access to counsel, McNutt v. Superior Court, 133 

Ariz. 7, 9 (1982); unreasonably deny a suspect bail release, State v. Ganske, 
STATE v. WILSON

Decision of the Court

7

114 Ariz. 515, 516-17 (App. 1977) (holding that interference with Ganske’s 

right to obtain independent evidence was “painfully clear” because his bail 

effort was experiencing inordinate delay); or unreasonably delay the 

transportation of a defendant to a hospital to obtain independent testing. 

Amos v. Bowen, 143 Ariz. 324, 328 (App. 1984).

¶20 Trooper T’s actions do not constitute unreasonable 

interference with Wilson’s right to obtain an independent sample. Viewing 

the evidence in the light most favorable to affirming the superior court, 

Estrada, 209 Ariz. at 288, ¶ 2, Trooper T elected to stop drawing Wilson’s 

blood because Wilson appeared to be playing games with him and because 

the blood just stopped flowing. Although Trooper T did not obtain two 

vials of Wilson’s blood, Wilson does not cite any authority the police were 

required to take two samples. Further, Wilson was always free to conduct 

an independent test. He was read his Miranda rights and therefore could 

have contacted counsel to receive information on his right to an 

independent draw and testing. Alternatively, there is evidence in the 

record that any independent testing of the remaining State’s sample would 

not have affected the results of that testing. The troopers did not deny

Wilson access to counsel, bail release, or unreasonably delay transportation 

to receive independent testing. Therefore, the superior court did not abuse 

its discretion when it denied Wilson’s motion to suppress the blood 

evidence or dismiss the case because the officers did not interfere with 

Wilson’s due process right to obtain an independent sample. 

II. Prosecutorial Misconduct

¶21 Wilson argues he is entitled to a reversal of convictions and 

sentences due to prosecutorial misconduct. He argues that the prosecutor 

vouched for the troopers’ credibility in her closing argument and impugned 

defense counsel throughout her arguments to the jury. The cumulative 

effect of the misconduct, Wilson argues, “so permeated the atmosphere of 

the trial that it functioned to deprive Wilson of a fair trial.” 

A. Standard of Review

¶22 Because the superior court is in the best position to determine 

the effect of a prosecutor’s comments, we will not disturb a superior court’s 

ruling unless there exists a clear abuse of discretion. State v. Newell, 212 

Ariz. 389, 402, ¶ 61 (2006). To warrant a reversal, the misconduct must be 

“so pronounced and persistent that it permeates the entire atmosphere of 

the trial.” Id. (quoting State v. Lee, 189 Ariz. 608, 616 (1997)). A defendant 

must show (1) misconduct is present and (2) a reasonable likelihood exists 
STATE v. WILSON

Decision of the Court

8

that the misconduct could have affected the jury’s verdict, thereby denying 

defendant a fair trial. State v. Moody, 208 Ariz. 424, 459, ¶ 145 (2004). If the 

defendant objected to the misconduct, we will only reverse for harmless 

error. State v. Martinez, 230 Ariz. 208, 214, ¶ 25 (2012). If the defendant 

failed to object to the alleged misconduct, we review the matter for 

fundamental error, with the defendant having the burden to show 

prejudice. Id.

B. Vouching

¶23 Wilson argues that the prosecutor twice vouched for the 

troopers’ credibility in her rebuttal closing argument. Vouching has two 

forms: “(1) where the prosecutor places the prestige of the government 

behind its [evidence] [and] (2) where the prosecutor suggests that 

information not presented to the jury supports the [evidence].” Newell, 212 

Ariz. at ¶ 62, (quoting State v. Vincent, 159 Ariz. 418, 423 (1989)). Wilson 

argues that the misconduct falls into both categories. He argues the 

prosecutor placed the prestige of the government behind the law

enforcement witnesses when she argued the troopers had no motivation to 

lie because their careers would be on the line. He also argues there was no 

evidence admitted at trial that suggested the troopers faced disciplinary 

action. 

¶24 At trial, the defense counsel stated to the jury:

Perhaps he [Trooper L] smelled alcohol. Perhaps he saw 

bloodshot, watery eyes. I don’t know if you can see from the 

distance you’re sitting at, but Mr. Wilson’[s] eyes are always 

bloodshot and watery. And so to assume that they’re 

bloodshot and watery because he’s consumed alcohol, they’re 

just assumptions by the officer.

The prosecutor objected on the basis of vouching, and the superior court 

sustained the objection. 

¶25 Later, the defense counsel questioned, “Does [Trooper T]

have motive to lie . . . what else are they making a mistake or lying about in 

this case?” In her rebuttal argument, the prosecutor stated to the jury: 

And the defense lawyer wants you to believe that the only 

explanation for how you heard about that statement is that 

the officer either wrote it down wrong or that he’s lying?

Really? He’s just making it up. He’s going to risk his career 
STATE v. WILSON

Decision of the Court

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and his livelihood to pin this defendant with a DUI, this 

person that he’s never met before in his life? Really?

The defense counsel objected on the basis of vouching, but the court 

overruled the objection. The prosecutor continued to argue, “Why would 

these officers risk their livelihood, risk their jobs and commit perjury?” The 

defense counsel again unsuccessfully objected on the basis of vouching.

¶26 “[P]rosecutorial comments which are fair rebuttal to areas 

opened by the defense are acceptable.” State v. Hernandez, 170 Ariz. 301, 

307-08 (App. 1991). The statements must be considered in context. State v. 

Ramos, 235 Ariz. 230, 238, ¶ 28 (App. 2014). Further, rhetorical questions do 

not rise to the level of misconduct. Id. at ¶ 30. For example, in Ramos we 

held the following rhetorical questions did not rise to the level of 

misconduct: “[W]hat motive would the police have to lie in a case like this?” 

and “[W]hat motive would they have to lie or fabricate any evidence?” 235 

Ariz. at ¶ 30.

¶27 We conclude there was no prosecutorial misconduct. The 

prosecutor’s questions regarding Trooper T risking his career were 

responses to the defense counsel’s question of whether Trooper T had 

motivation to lie. The prosecutor’s statements were a fair rebuttal to the 

defense counsel’s discussion of lying officers, of which the defense counsel

first opened the door. Further, several of the prosecutor’s questions were 

similar to rhetorical questions in Ramos and therefore do not rise to the level 

of misconduct. 

¶28 Even if the prosecutor’s conduct rose to the level of 

misconduct, there must a reasonable likelihood that the misconduct could 

have affected the jury’s verdict. Moody, 208 Ariz. at ¶ 145. Wilson argues 

that because the objections were overruled, the jury considered evidence 

that it should not have: that the troopers would have lost their jobs if “their 

version of the events was untrue.” But, we presume the jury follows the 

superior court’s instructions. Newell, 212 Ariz. at 403, ¶ 68. The court 

instructed the jury to determine the facts only from the evidence produced 

in court, and that evidence is witness testimony and exhibits introduced in 

court. It also instructed that comments by counsel are not evidence. There 

is no evidence that the jury did not follow the jury instructions. Thus, 

Wilson’s argument is unconvincing. We find no prosecutorial misconduct 

in the form of vouching. 
STATE v. WILSON

Decision of the Court

10

C. Impugning Defense Counsel

¶29 Wilson also argues that the prosecutor impugned defense 

counsel by setting “the theme of denigrating the defense as a ‘distraction 

from the truth’ right from the beginning of her argument to the jury.” He 

argues that she repeated sarcastic and denigrating comments throughout 

the rebuttal closing argument, making it clear she was impugning Wilson’s 

counsel. Further, he argues that the prosecutor’s remarks went to the heart 

of his defense and “sought to cast him as a conspirator in defense counsel’s 

theater of ‘distraction.’” He contends the prosecutor’s “[portrayal of] the 

defense team as trying to deceive the jury while the State is just telling the 

jury the truth” affected the jury’s verdict. 

¶30 In her rebuttal closing argument, the prosecutor stated, “Now 

[Wilson] thinks that if he can distract you enough from the truth that you’re 

not going to hold him accountable for his choices.” Later, she stated, 

“Here’s an explanation that the defendant – I’m sorry – the defense lawyer 

conveniently didn’t consider.” She continued: “Now the defense lawyer 

wants you to believe that because maybe, in some realm of possibility, no 

matter how remote, it’s possible that this instrument gave two false 

positives in a row, that that’s reasonable doubt. That is not reasonable 

doubt. That’s desperation.” 

¶31 Because the defense failed to object to this conduct, we review 

for fundamental error. Prosecutorial misconduct must permeate the entire 

atmosphere of the trial. Newell, 212 Ariz. at 402, ¶ 61. A jury argument that 

impugns the integrity or honesty of opposing counsel is improper. State v. 

Hughes, 193 Ariz. 72, 86, ¶ 59 (1998). However, the “proper subject” of 

closing argument is to criticize defense theories and tactics. Ramos, 235 Ariz. 

at ¶ 25 (quoting United States v. Sayetsitty, 107 F.3d, 1405, 1409 (9th Cir. 

1997)). Prosecutors have “wide latitude in presenting their closing 

arguments to the jury.” Ramos, 235 Ariz. 237, at ¶ 22 (quoting State v. Jones, 

197 Ariz. 290, 305, ¶ 37 (2000)). When the prosecutor’s comments are not 

directed at the defense attorney, the state does not impugn the defense 

counsel. State v. Velazquez, 216 Ariz. 300, 312, ¶ 52 (2007). But, we are 

concerned with the prosecutor’s comments when they “suggest to the jury 

that defense counsel is being deceitful.” State v. Denny, 119 Ariz. 131, 134 

(1978). 

¶32 Some of the prosecutor’s statements were borderline 

improper because she pointed directly to the defense counsel acting in 

desperation. Closing arguments are to criticize defense theories, not 

defense counsel. However, because prosecutors have such wide latitude, 
STATE v. WILSON

Decision of the Court

11

we find that the prosecutor’s statements do not amount to prosecutorial 

misconduct.

¶33 Further, Wilson still has the burden of showing that absent 

improper comments, a reasonable jury could have reached a different 

result. Ramos, 235 Ariz. at 236, ¶ 18. This is an especially hard burden to 

meet when the misconduct was not persistent and pervasive and the 

evidence of the defendant’s guilt was overwhelming. State v. Morris, 215 

Ariz. 324, 339, ¶ 67 (2007). Wilson has not shown prejudice. Only one 

statement was made which can be considered impugning the honesty of 

defense counsel, the court instructed the jury that closing arguments are not 

considered evidence, and the evidence of Wilson’s guilt was overwhelming 

given his confessions to being drunk and the laboratory tests. Wilson has 

not shown that the jury failed to follow the court instructions and instead 

considered the prosecutor’s statements as evidence. 

¶34 We do not condone the prosecutor’s statements and 

encourage the prosecutor to avoid ad hominem attacks against opposing 

counsel. However, the attack was not pervasive, the jury is presumed not 

to have considered it and it did not affect the jury verdict given the evidence 

presented. Accordingly, there was no prosecutorial misconduct requiring 

a mistrial or reversal. 

CONCLUSION

¶35 For the reasons stated above, we affirm Wilson’s convictions 

and sentences.